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Robert Digiacomo v. Wal-Mart Stores Inc


July 7, 2011


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1651-08.

Per curiam.


Submitted March 8, 2011 - Decided

Before Judges Wefing andPayne.

In December 1996, thirty-five bad checks bearing the name of Robert DiGiacomo were passed at a Wal-Mart store in Hammonton. In August 2001, Wal-Mart filed a criminal complaint against DiGiacomo, asserting a violation of the bad check statute, N.J.S.A. 2C:21-5, a charge that was amended by the Hammonton police to third-degree theft by deception, N.J.S.A. 2C:20-4. The matter was referred to a grand jury, and DiGiacomo was indicted in October 2001. However, he was living in Georgia or Florida at the time and was not located. In January 2006, DiGiacomo returned to New Jersey and, on May 24, 2006, he was arrested on a warrant that was issued when he failed to appear for his arraignment. DiGiacomo remained incarcerated until May 30, 2006.

Thereafter, the State's handwriting expert was unable to say with certainty that DiGiacomo had written the bad checks. The expert stated "although some similarities were noted" between DiGiacomo's handwriting and that on the checks, "the absence of significant identifiable or significant eliminating characteristics precluded the suspect from being either identified or eliminated as having authored" the bad checks. As a result, the prosecutor moved for dismissal of the indictment, stating, "[w]hile probable cause existed [for] the issuance of the complaint, subsequent investigation, including expert handwriting analysis rendered the State unable to sustain its burden at trial." The motion was granted on January 2, 2007.

DiGiacomo then filed a suit against Wal-Mart and an unserved former employee, Damon Marshall, the store's assistant manager who had initiated the criminal charges, alleging negligent and intentional conduct constituting malicious prosecution, false arrest, false imprisonment, false detention, deprivation of constitutional rights and infliction of emotional distress.

Wal-Mart moved for summary judgment, which was granted as to claims sounding in negligence. The judge denied summary judgment on the remaining claims, without prejudice, to permit DiGiacomo the opportunity to conduct discovery of Wal-Mart's employees. He did not do so, and a motion to further extend the period for discovery was denied.

Thereafter, in a written opinion dated March 19, 2010, a different judge granted Wal-Mart's second summary judgment motion on the claims of false arrest, false imprisonment, false detention, malicious prosecution, and violation of constitutional rights. The judge determined that DiGiacomo had failed to demonstrate liability on the part of Wal-Mart for false arrest, because his arrest was the result of the legally authorized issuance of a warrant by a judge of the Criminal Part following DiGiacomo's failure to appear at his arraignment on November 27, 2001. Claims of false imprisonment and false detention were likewise unsustainable because they arose as a consequence of DiGiacomo's arrest. The judge granted summary judgment on DiGiacomo's claim of malicious prosecution because he presented no evidence in opposition to Wal-Mart's claim that the criminal case did not terminate in his favor, Wal-Mart had probable cause to institute a criminal action against him, and Wal-Mart did not act out of actual malice. Thus, DiGiacomo failed to establish the elements of a malicious prosecution claim. Additionally, the judge dismissed DiGiacomo's constitutional claims because Wal-Mart was not a state actor.

On appeal, DiGiacomo raises the following issue for our consideration:


Should a party that used false evidence, fictitious names and provided no witnesses or testimony, along with a party that failed to adhere to NJSA & Rules Fair debt collections practices and for filing and contacting the presumed debtor in "non reasonable" time, be found negligent, liable for malicious prosecution and other accounts.

Employing the summary judgment standards set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) and Rule 4:46-2(c), we affirm. In essence, DiGiacomo claims in this matter that, upon receiving a series of bad checks issued by an identity thief on an account held in the name of Robert DiGiacomo, Wal-Mart performed a negligent investigation into the identity of the drawer of the checks, when a more diligent investigation would have disclosed that he was not the drawer. Then, Wal-Mart waited until shortly before the statute of limitations expired to file the criminal complaint that led to DiGiacomo's indictment. Because the State subsequently moved for dismissal of that indictment after determining that its handwriting expert could neither establish nor disprove that DiGiacomo was the drawer of the instruments, he claims that he is entitled to damages for malicious prosecution.

However, to prevail on a claim for malicious prosecution, DiGiacomo was required to prove that (1) a criminal action was instituted by Wal-Mart against him; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to him. LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)). "[E]ach element must be proven, and the absence of any one of these elements is fatal to the successful prosecution of the claim." Ibid. (citing Klesh v. Coddington, 295 N.J. Super. 51, 58 (Law Div.), aff'd, 295 N.J. Super. 1 (App. Div. 1996), certif. denied, 147 N.J. 580 (1997); and Penwag Prop. Co. v. Landau, 76 N.J. 595, 597-98 (1978)).

In the present case, DiGiacomo has failed to prove that the criminal action against him was motivated by malice and that there was an absence of probable cause.*fn1 "Malice in the law is the intentional doing of a wrongful act without just cause or excuse." McFadden v. Lane, 71 N.J.L. 624, 630 (E. & A. 1905). Although it has been said that in the absence of direct proof, malice can be inferred from a lack of probable cause, Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 395 (2009), the Supreme Court had held a plaintiff cannot simply point to the absence of probable cause as sufficient proof of the required element of malice. It has been well said that "it is not unreasonable to require that plaintiff, on a defendant's motion for summary judgment, produce at least some extrinsic evidence of malice." Westhoff v. Kerr S.S. Co., 219 N.J. Super. 316, 324 (App. Div. 1987), certif. denied, 109 N.J. 503 (1987). The rationale for that rule is simple: "Otherwise free access to the courts by citizens could be readily chilled by the harassment and cost of malicious use of process actions which would have to be sent to the jury." Ibid. [Brunson, supra, 199 N.J. at 396.]

Here, that crucial extrinsic proof is lacking.

Additionally, DiGiacomo cannot demonstrate a lack of probable cause for Wal-Mart's criminal complaint and his subsequent indictment. In order to show the absence of probable cause, DiGiacomo was required to produce evidence that at the time the complaint was filed "'the circumstances were such as not to warrant an ordinarily prudent individual in believing that an offense had been committed.'" Id. at 398 (quoting Lind, supra, 67 N.J. at 263). Here, nothing produced by DiGiacomo indicates a lack of probable cause in connection with Wal-Mart's actions. All of the checks at issue were printed with DiGiacomo's name, home address and telephone number. The account on which they were drawn was undeniably his. Following the receipt of the checks, Wal-Mart periodically tendered them to DiGiacomo's bank, the Minotola National Bank, after which they were returned either for insufficient funds or because the account had been closed. Subsequent investigation by Wal-Mart provided no evidence that would suggest identity theft.

This information, when presented to the Hammonton police, led to the issuance of the complaint that was later amended by the police to allege theft by deception.*fn2 Thereafter, the Atlantic County Prosecutor made an independent determination to submit the case to the grand jury, after which an indictment based upon probable cause was handed down.

These steps, which closely resemble those taken by in Brunson, id. at 398-99, support our conclusion that probable cause for prosecution existed in this matter. Nothing "intimates - much less demonstrates - the type of abuse of our judicial processes the tort of malicious prosecution is designed to curb." Id. at 399. Consequently, we affirm the order of summary judgment entered dismissing DiGiacomo's malicious prosecution claim.

Further, we affirm the order dismissing any claim for negligence premised on these facts, determining in accordance with Brunson that DiGiacomo cannot avoid the high evidentiary requirements of an action for malicious prosecution by asserting a cause of action for negligence. Id. at 400-03.

We likewise affirm the dismissal of DiGiacomo's constitutional claims. "[T]he Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities." Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S. Ct. 2764, 2769, 73 L. Ed. 2d 418, 425 (1982). Courts considering the issue of whether filing a police report constitutes "state action" for the purposes of civil rights law have answered the question in the negative. See, e.g., Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988) ("[p]olice reliance in making an arrest on information given by a private party does not make the private party a state actor."); Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1087 (C.D. Cal. 2008) ("[p]roviding false information to the police does not transform a private individual into a state actor" for purposes of 42 U.S.C.A. § 1983); Perkins v. Rich, 204 F. Supp. 98, 100 (D. Del. 1962), aff'd o.b., 316 F.2d 236 (3d Cir. 1963) (filing of a police report not "state action").

We decline to address DiGiacomo's allegations of conspiracy, violations of the Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 to 1962p, and fraud, which were not raised before the motion judge. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, we decline to address arguments based upon alleged failure by Wal-Mart and the bank to comply with N.J.S.A. 2C:21-5, which was not the statute under which DiGiacomo was prosecuted and which is irrelevant to the present civil proceeding.


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